Killing Daddy: Developing a Self-Defense Strategy for the Abused Child

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1989

Joelle A. Moreno JD Candidate, [email protected]

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Recommended Citation Joelle A. Moreno, Killing Daddy: Developing a Self-Defense Strategy for the Abused Child , 137 U. Pa. L. Rev. 1281 (1989). Available at: https://ecollections.law.fiu.edu/faculty_publications/30

This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. KILLING DADDY: DEVELOPING A SELF-DEFENSE STRATEGY FOR THE ABUSED CHILD

JOELLE ANNE MORENOt

"All happy families resemble one another, but each unhappy family is unhappy in its own way."

INTRODUCTION

Children1 rarely kill their parents.2 When a child commits parricide,3 the killing usually follows a history of violent abuse by that parent." The effect of intrafamily violence on the perceptions and behavior

t B.A. 1984, Swarthmore College; J.D. Candidate 1989, University of Pennsylvania. * L. TOLSTOY, ANNA KARENINA I (A. Maude trans. 1970). Throughout this Comment, "children" will refer to adolescents and teenagers. See Timnick, Fatal Means for Children to End Abuse, L.A. Times, Aug. 31, 1986, pt. II, at 1, col. 1, 3, col. 1 (noting that the average age of children who kill a parent is "about 15 h or 16"). 2 See, e.g., Blodgett, Self-Defense: Parricide Defendants Cite Sexual Abuse as Justification, A.B.A. J., June 1, 1987, at 36, 37 ("About 400 homicides per year in this country are cases of children killing their parents or having someone else do it for them."); Berg, Lawyer Focuses Practice on Defense Consulting on Parricide, L.A. Daily J., July 17, 1987, § 2, at 1, col. 1, 1, col. 4 (reporting the estimate of Paul Mones, an expert in juvenile law who specializes in parricide cases, that only "3 percent of the 20,000 murders that occur each year are instances of parricide"); Chambers, Children Citing Self-Defense in Murder of Parents, N.Y. Times, Oct. 12, 1986, § 1, at 38, col. 3, 38, col. 3 ("Studies involving parricide . . . show that about 2 percent of all homicides in the nation, about 400 killings a year, are committed by children against their parents."); cf. Mones, The Relationship Between Child Abuse and Parri- cide: An Overview, in UNHAPPY FAMILIES: CLINICAL AND RESEARCH PERSPECTIVES ON FAMILY VIOLENCE 31, 38 (E. Newberger & R. Bourne eds. 1985) (describing how recent nationwide publicity of cases of matricide and patricide has been misinterpreted as evidence of an increase in violent juvenile crime). I The word "parricide" will be used throughout this Comment to mean "[tihe murder of one's parent." BALLENTINE'S LAW DICTIONARY 914 (3d ed. 1969). Parri- cide can involve killing either one's father or mother. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 954 (1979) (defining parricide to include the act of murdering one's father or mother). There is some confusion, however, about the definition of the term "parricide." See, e.g., BLACK'S LAw DICTIONARY 1006 (5th ed. 1979) (defining parricide as "[tihe crime of killing one'sfather" (emphasis added)). " See, e.g., Blodgett, supra note 2, at 36 ("Well over 90 percent of the kids who kill their parents are physically, emotionally or sexually abused [by that parent]."); Mones, supra note 2, at 31 (describing the "alarming" fact that in almost every case of parricide the defendant was the victim of severe child abuse by the murdered parent); Post, Adolescent Parricidein Abusive Families, 61 CHILD WELFARE 445, 445 (1982) ("[P]arricide is often the product of the perpetrator's chaotic emotions that result, in

(1281) 1282 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 137:1281 of its victims has already been recognized in the context of the "battered woman's syndrome."5 This Comment will explore the judicial and public reaction to similar self-defense claims raised by battered children and argue that these defenses are equally, if not more, compelling. Self-defense is based on the principle that a person "who is unlaw- fully attacked by another, and who has no opportunity to resort to the law for his defense, should be able to take reasonable steps to defend himself."'6 The factfinder in a homicide case must conclude that the turn, from a pattern of child abuse [by the parent who was later murdered]."); Thomp- son, Battered Child Syndrome Gets No Respect, L.A. Daily J., Apr. 26, 1985, § 1, at 3, col. 1, 3, col. 1. ("Virtually all of the 254 children who killed a parent in 1982 had suffered a long period of abuse at the hands of the parent . . "). " The "battered woman's syndrome" was developed by Dr. Lenore Walker, a psychologist who specializes in battered women, to describe the psychological characteristics of abused women and the battering relationship. Dr. Walker describes the battering relationship as composed of three distinct and recurring phases: a tension-build- ing stage, followed by an acute battering incident, and finally a period of contrition and affection. See L. WALKER, THE BATTERED WOMAN 55-70 (1979). Dr. Walker's theory has been recognized as the seminal work on the psycho-social effects of battering on adult women. See Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, 9 WOMEN'S RTS. L. REP. 195, 202 (1986). The battered woman's syndrome is a psychological profile of a woman trapped in a battering cycle. Research in this area is based on adult relationships. Certain aspects of this theory are therefore inappropriate in the context of parent-child relationships. For example, the psychological state of "learned helplessness," a term borrowed from the work of behaviorist psychologists, see, e.g., M. SELIGMAN, HELPLESSNESS: ON DE- PRESSION, DEVELOPMENT, AND DEATH 21-27 (1975) (describing animal experiments showing how, after mistreatment, animals develop a psychological inability to help themselves when exposed to additional pain); Hiroto, Locus of Control and Learned Helplessness, 102 J. EXPERIMENTAL PSYCHOLOGY 187, 187 (1974) (identifying fail- ure to escape as the primary characteristic of learned helplessness), was discussed at length by Dr. Walker to explain why battered women do not leave battering relationships. See L. WALKER, supra, at 42-54. When child abuse begins at an early age, there is little need to explain the fact that the child did not leave the relationship, as that is practically impossible for a young child. See Mones, supra note 2, at 36-37; Thomp- son, supra note 4, § 1, at 3, col. 1. In addition, this Comment purposely omits any discussion of "learned helplessness" because, without it, a self-defense claim for battered children is not open to the criticism that it is a quasi-insanity defense. Unfortunately, this aspect of Dr. Walker's theory has focused attention on the battered woman as passive and unable to respond reasonably, which creates "images of a psychological defense-a separate defense and/ or an impaired mental state defense." Schneider, supra, at 199. S W. LAFAVE & A. SCOTT, CRIMINAL LAW § 5.7(a), at 454 (2d student ed. 1986). Some states incorporate a "duty to retreat" into their laws of self-defense. Within these jurisdictions, the intended victim is not justified in using deadly force if she can withdraw from the encounter. See id. at 460-61; see also, e.g., CONN. GEN. STAT. ANN. § 53a-19(b) (West 1985) (providing that an intended victim has the duty to withdraw if she can do so in complete safety); N.Y. PENAL LAW § 35.15(2)(a) (McKinney 1987) (same). This aspect of self-defense law, although it would be impor- tant in developing a self-defense claim in a "duty to retreat" jurisdiction, will not be discussed in this Comment. One reason for this is the existence of an exception when a 1989] KILLING DADDY defendant perceived an imminent deadly or serious attack7 and that her perception was reasonable.' This model is inappropriate when a parent and child are involved, because it presupposes the objective and rational observations of two strangers. Abused9 children, like battered women, perceive the behavior of their batterer with a degree of knowledge and familiarity not accounted for in the rational observation standard of the self-defense model.'0 Because of this difference in perception, child abuse-parricide cases will always require expert analysis of the defendant's ability to assess and respond to the behavior of her batterer." person is attacked in her own home. See, e.g., CONN. GEN. STAT. ANN. § 53a-19(b)(1) (West 1985) (providing that, as long as she is not the initial aggressor, a victim has no duty to retreat in her own home); N.J. STAT. ANN. § 2C:3-4(b)(2)(b)(1) (West 1982) (same); N.Y. PENAL LAW § 35.15(2)(a)(i) (McKinney 1987) (same); 18 PA. CONS. STAT. ANN. § 505(b)(2)(ii)(A) (Purdon 1983) (same). But see N.J. STAT. ANN. § 2C:3-4(b)(2)(b)(i) (West 1982) (imposing a duty to retreat when the attacker and the victim occupy the home where the attack takes place). ' See Ridolfi & Arguedas, Women's Self Defense Cases: Jurywork and Legal Strategy, in JURYWORK: SYSTEMATIC TECHNIQUES 223, 224 (B. Bonora & E. Krauss eds. 1979) [hereinafter Jurywork]. I See C. EWING, BATTERED WOMEN WHO KILL 47 (1987); W. LAFAVE & A. ScoTT, supra note 6, at 454. 1 "Abuse," "intrafamily abuse," and "family violence" in this Comment refer spe- cifically to child abuse. Other forms of intrafamily violence will not be discussed. This is not meant to imply, however, that other forms of abuse are not significant or preva- lent. See, e.g., M. STRAUS, R. GELLES & S. STEINMETZ, BEHIND CLOSED DOORS 36 (1980) [hereinafter BEHIND CLOSED DOORS] (discussing husband abuse). 10 The landmark case of State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977), contained the first judicial recognition of a subjective standard of self-defense for battered women on trial for killing their abusers. Twelve years have passed since the Supreme Court of Washington ruled that a battered woman defendant "is entitled to have the jury consider her actions in the light of her own perceptions of the situation." Id. at 240, 559 P.2d at 559. Meanwhile, other states have followed Washington's example. See, e.g., State v. Hodges, 239 Kan. 63, 72, 716 P.2d 563, 569 (1986) (adopt- ing a subjective standard of self-defense for battered women); People v. Torres, 128 Misc. 2d 129, 130-31, 488 N.Y.S.2d 358, 360 (Sup. Ct. 1985) ("The standard for the evaluation of the reasonableness of the defendant's belief and conduct is not what the ordinary prudent man would have believed. . . . [but] rather, whether the defendant's subjective belief as to the imminence and seriousness of the danger was reasonable."). Even when a state declares that this "reasonable belief" imports an objective ele- ment into the determination of the reasonableness of the defendant's actions, the in- quiry will still initially involve an examination of the defendant's assessment of her situation, followed by a determination whether, in light of the circumstances in which the defendant found herself, a reasonable person would have believed what she believed. See People v. Goetz, 68 N.Y.2d 96, 114-15, 497 N.E.2d 41, 52, 506 N.Y.S.2d 18, 29-30 (1986). 11See Jahnke v. State, 682 P.2d 991, 1043 (Wyo. 1984) (Rose, J., dissenting) (stating that the reason for introducing evidence of the history of abuse of the parricide defendant is to explain how battered people perceive and respond to the "imminence of danger"); cf. Thompson, supra note 4, § 1, at 3, col. 1 ("[J]udges can't comprehend abuse so severe as to drive an otherwise blameless youth to kill. 'Children in our society aren't considered to be people who have rights like adults.'" (quoting Robert Tiedeken, the Cheyenne, Wyoming, defense attorney who represented Deborah Jahnke)); infra notes 27-29 and accompanying text (discussing how a history of abuse may increase the 1284 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 137:1281

In cases involving battered women, the effect of violent abuse .has been recognized as " 'beyond the ken' " of the average juror.12 Thus, use of expert testimony is generally accepted in such cases in order to "describe common psychological and social characteristics of battered women." 13 This information is used to "educate the judge and jury about the common experience of battered women, [and] to explain the 14 context in which an individual battered woman acted." Any judicial resistance to child abuse-parricide self-defense claims is puzzling, given the patterns of abuse"6 and the fact that these self- defense claims are "virtually identical to [those] used in cases where abused women kill their husbands or lovers." 6 Despite these factors, courts generally have not fully accepted self-defense claims for child abuse-parricide defendants." Battered women, but not battered children,' have been allowed to develop self-defense claims that use their personal history of violence to "explain why their perception of danger was reasonable."' Because of this distinction, battered children, unlike victim's ability to perceive danger from her abuser). " Ibn-Tamas v. United States, 407 A.2d 626, 635 (D.C. 1979) (quoting Dyas v. United States, 376 A.2d. 827, 832 (D.C.), cert. denied, 434 U.S. 973 (1977)). See generally MCCORMICK ON EVIDENCE, § 13, at 33-34 (3d ed. 1984) (discussing the admissibility of expert testimony in situations in which a jury is not "competent" to draw inferences). "3Schneider, supra note 5, at 207; see also Recent Developments, The Use of Expert Testimony Concerning the "Battered Wife Syndrome," 8 AM. J. TRIAL ADVOC. 505, 506 (1985) (providing a list of cases that hold that expert testimony on the battered wife syndrome is admissible). 14 Schneider, supra note 5, at 201. 15 See supra note 4 and accompanying text; see also Lubenow, When Kids Kill Their Parents, NEWSWEEK, June 27, 1983, at 35, 35 ("Usually parent killing involves a drunken, physically abusive father killed by a son who sees himself as the protector of not only himself but also of his mother and siblings."); Mones, supra note 2, at 37 (asserting that child abuse destroys traditional family support systems and roles). 18 Mones, supra note 2, at 37; see also Thompson, supra note 4, § 1, at 3, col. 1 (describing a self-defense claim for child abuse-parricide defendants as "arguably more compelling" than a similar claim for battered women). 11 See, e.g., Blodgett, supra note 2, at 37 ("The majority of children accused of killing their parents are convicted, with some serving 'very long' prison terms . . .); Thompson, supra note 4, § 1, at 3, col. 1 (reporting the statement of Paul Mones, an expert on child abuse-parricide cases, that "no judge has accepted the self-defense claim completely"); see also Timnick, supra note 1, pt. II, at 2, col. 1 (stating that legal experts familiar with child abuse-parricide cases attribute the "discrepent outcomes of essentially similar cases . ..[to] the specific circumstances surrounding each murder, the region in which the crime occurred, the sophistication of the defense, the makeup of the jury, the reaction of the judge and, perhaps most importantly, the strength of the evidence of severe child abuse"). But see infra notes 117-21 and accompanying text (discussing the acquittal of child abuse victim Johnny Juhanatov on charges of attempt- ing to murder his abusive father). "8 Crocker, The Meaning of Equalityfor Battered Women Who Kill Men in Self- Defense, 8 HARV. WOMEN'S L.J. 121, 141 (1985); see also Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 19891 KILLING DADDY 1285 their adult women counterparts, are unable to achieve significant suc- cess in the courts. This Comment will explore the connection between child abuse and parricide in the context of developing a self-defense claim. Several recent cases will be examined in conjunction with a review of psychological and social theories of child abuse. The case studies are intended to provide perspective on the legal problems that confront child abuse- parricide defendants. This Comment will argue that the recent, well documented, "dramatic increase in society's knowledge about sexual abuse"' 9 and the resultant increase in public and professional awareness of the problem of family violence20 have paved the way for self- defense strategies in child abuse-parricide cases. It will conclude by predicting that these claims may soon achieve the same level of judicial recognition as those of battered adult women."'

I. SELF-DEFENSE, CHILD ABUSE, AND PARRICIDE: ESTABLISHING THE CONNECTION

When a battered child strikes back and kills her battering parent, defense attorneys today are more likely to argue that the killing was justified as self-defense;22 self-defense for child abuse-parricide defendants "appears to be emerging as a viable defense."23 Self-defense claims for battered children, however, as for battered women, remain problem- atic. A major source of difficulty is the traditional definition of self- defense, which assumes male, stranger-to-stranger assault.2" To an out-

9 WOMEN'S Rrs. L. REP. 227, 230 (1986) (asserting that the dilemma faced by battered women reveals a unique context in which their acts of self-defense can be under- stood); Schneider, supra note 5, at 196-97 n.6 (citing 46 cases between 1980 and 1985 in which battered women were allowed to raise self-defense claims). 11 Blodgett, supra note 2, at 36 (quoting Mones, supra note 2, at 36); see also Korbin, Child Abuse and Neglect: The Cultural Context, in THE BATTERED CHILD 23 (R. Heifer & R. Kempe 4th ed. 1987) ("Child abuse emerged. . . [as] a matter of public and professional concern in the United States in the early 1960s."). 20 In cases involving battered women, recent efforts to heighten public awareness have exposed a history of condoning and sanctioning wife abuse. See BEHIND CLOSED DOORS, supra note 9, at 9-10; Crocker, supra note 18, at 129 n.35. 21 "[Now that courts are routinely treating juveniles as adults in criminal cases, they will begin to realize that children have the same rights as adults, as well." Thompson, supra note 4, § I, at 3, col. 2 (paraphrasing Cheyenne, Wyoming defense lawyer Robert Tiedeken, who represented Deborah Jahnke). 22 See Chambers, supra note 2, § 1, at 38, cols. 3-4 ("[D]efense lawyers are now more likely to mount a vigorous and often highly publicized defense based on the idea that battered children, like battered wives, reach a point where their fear of being killed becomes unbearable and they kill in self-defense."). 23 Id. 24 See supra notes 6-8 and accompanying text (discussing traditional self-defense theory). See generally Stell, Close Encounters of the Lethal Kind: The Use of Deadly 1286 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 137:1281 sider, it appears that many battered persons kill at times that are less dangerous or threatening than other situations that they have sur- vived. 5 This perception, however, which is shaped by traditional self- defense doctrine, omits an essential component of the dynamics of family violence: the victim's familiarity with her abuser.2" Battered children and women perceive, more acutely than strangers, the imminence and degree of danger at the hands of their abusers. Victims of continued abuse "become attuned to stages of violence ... [and learn to] interpret certain conduct